Introduction
The defendant, Dairy Products, had a duty to properly hire, train and supervise its drivers in order to minimize accidents and injuries to other drivers. However, the defendant, Dairy Products failed to properly hire, train and supervise its driver, Gary Clausen. Consequently, he sped through an intersection and crashed into an innocent driver. Their negligence caused the tragic, catastrophic death of the plaintiff, Joseph Smith.

The plaintiff’s argument outlines why Dairy Products is negligent on 2 levels: 1) for their negligent hiring, training and supervising practices of their drivers, and 2) for employing Gary Clausen, who caused this crash and never should have been hired as a driver in the first place.

Negligent Hiring
In February of 1994, Gary Clausen applied to Dairy Products as a dock worker. He was hired and worked successfully for about 1 year when he decided to apply for a driver position. Steven Reese, who is Dairy Products’ resident/General Manager, will testify that “one of the most important factors [in looking at a driving applicant] is an individual’s driving record.”

Gary Clausen’s 10 year driving record included 2 accidents, 6 driving violations, and one license suspension for a ‘hit and run.’

Despite Dairy Products hiring policy, Steven Reese admits that they were not aware of Clausen’s driving violations at the time they hired him.

Had they reviewed his driving record and applied it to their own evaluation system, he would not have been hired. Dairy Products rates the applicant’s driving violation record according to a Driver Evaluation Form. On this form, previous violations and infractions receive points. Dairy Products uses this point system to determine if a driver is too risky to hire. 0-15 points is considered “Acceptable”; 15-30 points is considered “Possible”; and above 30 points is considered ‘Unacceptable”.

Driver Evaluation Form
Dairy Products assigned Mr. Clausen 0 points, essentially a perfect score despite his violations and license suspension. The defendant, Dairy Products, hired Mr. Clausen as a driver regardless of his driving record.

Negligent Training
After Mr. Clausen was hired, he was given a written test and a road test. On the written test, Mr. Clausen answered 20 of the questions out of 100 wrong. In addition, the road test trainer did not require Mr. Clausen to complete the road test but passed him anyway.

Negligent Supervision
There are many areas in which Dairy Products failed in supervising drivers. First, Dairy Products does not conduct periodic road tests of its drivers. Second, Dairy Products does not maintain Commercial Drivers License records. When Steven Reese was questioned on this topic in his deposition, this is what he said:

Q: Does Dairy Products conduct periodic road tests of its drivers?
A: No it does not.
Q: Does Dairy Products maintain reports with respect to those road tests?
A: No, not really.

In addition, if drivers continue to get violations while employed as a driver, there is no consequence. Steven Reese admitted that no Dairy Products’ employee has been terminated due to their driving record.

The Accident
By October 5, 1995, Gary Clausen had been employed as a driver by Dairy Products for 6 months. He had just made a delivery and was proceeding South on Main Street towards the intersection at Main and Spring (1/2 mile away).

There are conflicting reports as to what happened next, but some witnesses tell police that Gary Clausen was speeding and ran a red light.

The speed limit on Main Street was 25 mph. The Fatal Traffic Collision Reconstruction determined that Clausen was speeding at 31 mph at impact. The police report says that Clausen “lost control of his unit and traveled from the south bound lanes into the north bound lanes of travel striking [Smith] which was stopped in the inner lane of travel heading north at the intersection of Main and Spring streets. [Smith] after impact was forced into…Power utility pole which caused the death of [Smith].”

Conscious Pain and Suffering
The ambulance and coroner believe that Mr. Smith was alive for about 5 minutes and suffered greatly before he died.

In Conclusion
Dairy Products had a responsibility to put safe drivers on the road to deliver their product, but they failed to uphold this duty. Even though they stated that a driving record is the most important factor in screening new drivers, they did not do this. This makes them negligent because:
• They did not look at Clausen’s full driving record
• They did not include violations on their Driver Evaluation Form
• Clausen’s point total indicated he did not meet standards
• They were aware of his speeding and license suspension but hired him anyway
• They ignored State/Fed standards by not getting a full driving history after being on notice of suspension
• There was no reprimand for his violations and accident

Instead, Dairy Products put a high risk driver on the road. And as his employer, they are fully responsible for his actions.

So how do you assign blame to compensate the Smith family for such a tragic and needless loss? Joseph Smith was 52 years old. He had 3 children—ages, 28, 24, 21. He and his wife, Marie, were married for 30 years. He worked as a general contractor and made $65,000/year.

According to the Wrongful Death Act, when a company is negligent and caused the tragic death of a person, that person’s family is entitled to Lost Earning Capacity, Pain and Suffering, and his wife Marie is entitled to Loss of Consortium.

An expert economist, Dr. Ray Jones, estimated that Mr. Smith would have worked 17 more years. Based on his current income, plus benefits and pay raises, his lost earning capacity is $1.2 million dollars. In addition, you as a juror are required to assess the value of Mr. Smith’s family’s pain and suffering as well as his own pain suffering at the time of his death. In addition, because Mrs. Smith will no longer have her husband’s companionship, help and support, you are to assess the value of her loss under the Loss of Consortium Law.

In conclusion, Mr. Smith’s death could have been prevented had Dairy Products employed drivers that were not at a high risk for driving dangerously. They willingly put Mr. Smith in harms way, but are now refusing to take responsibility for their actions. Until they do, the Smith family will continue to suffer the consequences of their actions.

Defense Case Argument

This was a tragic accident and Dairy Products feels deep sympathy for the Smith family, but it is not responsible for the accident that tragically killed Joseph Smith. The evidence in this case does not point to Dairy Products and Gary Clausen as the responsible parties. Instead, another driver on the road, John Weber, ran a red light and caused this accident.

There are two main issues in this case that indicate why Dairy Products and Gary Clausen are not responsible for Mr. Smith’s death: 1) Dairy Products’ hiring, training, and supervising policies were not flawed, and 2) Gary Clausen did not cause the accident.

1. Hiring, training, supervising
This is a company with a long tradition of providing good service. Dairy Products has many policies and practices in place to ensure that service. This includes its hiring, training and supervising policies for its employees.

Hiring
While the plaintiffs would like the jury to believe that Dairy Products recklessly hires just anybody and disregards the proper steps in hiring someone, that is just not true. Dairy Products’ hiring process is very thorough and complex. There are many steps involved before a potential employee is hired.

First, after a potential employee fills out an application, their references are thoroughly checked. Gary Clausen applied to Dairy Products in 1994 and Steven Reese reviewed his application.

Even though Gary Clausen was hired as a dock worker, he expressed interest in driving a truck delivery route and Steven Reese considered him for the position almost one year later. It was not unusual for dock workers to also be drivers. In this instance, Dairy Products’ policy is to have the employee re-apply for that specific position and follow Fleet Safety Manual guidelines. Then, the applicant has to “have a physical, drug test, and an MVR” (moving violations report).

All three of which were done and Gary passed all three with flying colors.

At the time Mr. Clausen was hired, State and Federal regulations required that a potential driver’s 1 year driving history be examined for the moving violations report. Dairy Products, in complete compliance with this law, pulled Gary’s driving records for the previous year. Because Gary Clausen did not have any violations within the last year, he received 0 points on the Driver Evaluation Form.

Training
Once the hiring process is completed, training begins. Dairy Products sent Gary to get his Commercial Driver’s License or “CDL” and provided him literature to study for the test. Over the course of 6 months, a professional instructor from the CDL licensing bureau trained Gary to get his Commercial Driver’s License. Gary was then tested by both Dairy Products and the state of Illinois. After Gary passed his CDL test on the very first attempt, he was issued a CDL license. New hires at Dairy Products are then required to complete a 45 mile road test on 2 lane highways, under supervision, to evaluate how well they drive in those conditions. On the day of the test, the roads were slick from a snow storm. Therefore, Gary only completed 30 miles of the road test. However, Dairy Products felt that this was adequate especially since he had already completed his CDL training.

Supervision
The entire supervision process consists of the following: once a year a driver must complete a certificate of violations. Dairy Products did this every year. Dairy Products was in compliance with State and Federal regulations at all times.

After the driver fills out the driver evaluation form, Dairy Products has in place a review process by the Driver Review Board. This board reviews all licenses, accidents, etc. to ensure that “everything is being looked at.” If the Board believes that a driver requires some driving education due to a violation, they will send that driver to a defensive driving class. They will also send someone to ride along with the driver to make sure they are driving safely and professionally. The Board also sends pamphlets to its drivers to review for additional education.

2. Gary Clausen did not cause of the accident; Another driver caused the accident.
The facts illustrate that another driver caused the accident that tragically killed Mr. Smith. His name is John Weber and he set the chain of events in motion. Some witnesses stated that Mr. Weber was speeding, ran a red light and hit Gary Clausen in the Dairy Products delivery truck, who then in turn hit Joe Smith.

And if the plaintiffs want to look at driving histories, then they should have looked at John Weber’s driving history. He had 8 previous driving violations and was driving on a suspended license at the time of the accident.

In conclusion
What more could Dairy Products have done? The plaintiffs argue that we should have checked Gary Clausen’s 10 year driving history instead of one year. However, the policy, by law, only requires a review of an applicant’s one year driving history.

Negligence means that we failed to do something an ordinary company would do or that we did something that an ordinary company would not do. Gary was a good employee and Dairy Products fully stands by him and his driving abilities. Any other ‘reasonable’ company would have hired him as well.

Finally, the evidence points to John Weber as the cause of the accident, not Gary Clausen. John Weber has a long history of driving recklessly, speeding, and disregarding the law by driving without a license. Therefore, we believe that when you review the verdict form you will find that Dairy Products is not negligent, and therefore not the substantial factor in Mr. Smith’s death.

Instructions of Law

The following jury instructions are based on the pattern jury charges a judge would give a real jury in this case. While the language can be confusing, each instruction is important. A judge typically would not answer a juror’s question about the law or instructions. Answer the questions to the best of your ability. If a part of the law is particularly confusing, you may note that in one of your open-ended responses below.

1. In Civil cases such as this one, the plaintiff has the burden of proving those contentions which entitle him to relief:
In this case the plaintiff has the burden of proving the following propositions: that the defendant was negligent, and that that negligence was a substantial factor in bringing about the accident.

2. The legal term negligence, otherwise known as carelessness, is the absence of ordinary care which a reasonably prudent person would exercise in the circumstances here presented. Negligent conduct may consist either of an act or an omission to act when there is a duty to do so. In other words, negligence is the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, in light of all the surrounding circumstances established by the evidence in this case.

3. In order for the Plaintiff to recover in this case, the Defendant’s negligent conduct must have been a substantial factor in bringing about the accident. A substantial factor is an actual, real factor, although the result may be unusual or unexpected, it is not an imaginary or fanciful factor or a factor having no connection or only an insignificant connection with the accident.

4. If you find that the Defendant is liable to the Plaintiff, you must then find an amount of money damages which you believe will fairly and adequately compensate the Plaintiff for all the physical and financial injury sustained as a result of the accident. The amount which you award today must compensate the Plaintiff completely for damage sustained in the past, as well as damage the Plaintiff will sustain in the future.

5. The Plaintiff is entitled to compensation for any loss or reduction of future earning capacity that he/she will suffer as a result of the injuries sustained in this accident. In determining this amount, you may consider the type of work that the Plaintiff has done, the type of work which, in view of his physical condition, education, experience and age, he would have been doing and will be doing in the future, the extent and duration of the Plaintiff’s injuries, together with all other matters reasonably relevant. The amount of lost future earning capacity which you determine to have been sustained by the Plaintiff should be expressed by you in a dollar amount.

6. The Plaintiff’s spouse is entitled to be compensated for the loss of her husband, loss of services to her and the loss of companionship of her spouse.

7. The Plaintiff is entitled to be awarded such an amount as you believe will fairly and adequately compensate for the mental and physical pain, suffering and inconvenience that the Decedent endured from the moment of his injury to the moment of his death as a result of this accident.

8. You are to add each of these items of damages together in its proper category and return your verdict.

Juror Questions
Please answer all the below questions and then press the "Submit" button. You are welcome to refer to the above text when deciding your answers.